27 April 2013

MAHINA: Many thanks for the wealth of knowledge with which you tirelessly continued to impart in response to my series of questions, which are partly due to my struggle to comprehend the complexities and subtleties over the subject matter under discussions. My main purpose for posing those questions was not only to informatively assist my reading of your interesting PhD dissertation but also my understanding of Tongan history, largely yet decisively shaped by both distinct albeit connected processes of colonialism and imperialism through the powerful impact of the so-called explorers of unkown lands such as Cook in parallel to outer space explorations [of immense intellectual, scientific and technological value] and possible exploitations [of great political, economic and legal benefits]. Such an ongoing powerful impact since contact with Europe saw the radical social, political, economic and legal transformation of Tongan society by means of education, religion and technology, including new means and novel techniques of warfare, which effectively facilitated both the colonial and imperial processes mostly to the subordination and, in most cases, dislocation of Tongan cultural institutions, values, practices and systems. Tonga was thrown into a lengthy and bloody civil war in 1799 which lasted for some fifty odd years, when the powerful chiefs of both divine Tu'i Tonga and secular Tu'i Kanokupolu were fighting against each other over the control of the whole of Tonga. A politically ambitious Tu'i Kanokupolu, Taufa'ahau Tupou I [alonjg with the Tautahi, that is, Warriors of the Sea] fought aganist both Tu'i Tonga and powerful chiefs of Tu'i Kanokupolu on Tongatapu. By successfully aligning himself with the missionaries and foreigners, Taufa'ahau hugely benefitted from their help and advice all in favour of both his political and military activities, which finally led to his being declared the absolute ruler of all Tonga. In the course of his becoming the sole ruler of Tonga, he began introducing a number of legal codes, such as the 1839 Vava'u Code of Laws and other subsequent codes, which culminated in the promulgation of the 1875 Constitution, the final nail on the coffins of his political rivals. Mind you, the 1875 Constitution is predominantly, if not, wholly Western and Christian in form, content and function, with hardly anything Tongan! It is therefore a great irony for the people of Tonga, who still largely live and practise their culture and speak their language, to have been strictly governed by legal codes that are completely foreign to them [especially so when culture is a device for the historical composition or constitution of refined knowledge and skills and language as a vehicle for their dialectical transmission or communication in time and space]! Ideally, the Tongan Constitution and Laws, like all constitutions and laws, should be regarded as a form of "averaging-out" of all human interests, both material and immaterial [applying to both within and across cultures and languages], where the temporal-formal, spatial-substantial and functional conflicts are symmetrically mediated in the process through harmony and beauty, transforming them from a condition of chaos to a state of order. I must say that both Tongan Constitution and Laws are far from this very much needed state of affairs!

GANGALE: Your last message is very powerful in its perspective on the impact of European colonialism, and specifically, of British imperialism on Tonga. Sixty years before the launch of Sputnik 1 and the dawn of the space age, space was used by two novelists as a venue to reverse the perspective on colonialism, to explore what the effect of contact with a technologically superior culture from Mars would have on Earth in general and on Europeans in particular. The more famous example is H. G. Wells's "The War of the Worlds;" less well known in the English-speaking world is Kurd Lasswitz's "Of Two Planets," an abridged translation of which appeared in 1970.

Currently there is no human law regarding extraterrestrial civilizations; however, some theoretical work has been done in the field of meta-law, the basic principles that such law should embody. I have not read this literature (but I have a book on order). With this caveat, it seems to me that the first question of law is recognizing extraterrestrial biological entities as persons. Your writings serve to remind us that Europeans did not always recognize the legal personhood of "terrestrial aliens." In the play "1776," a fictional treatment of the signing of the American Declaration of Independence, Ned Rutledge, delegate from South Carolina, objects to John Adams's reference to black slaves as Americans. Adams responds, "They are people and they are here. If there is another qualification, I haven't heard of it."

"They are not people, they are property."

"No, they are people who are being treated as property!"

In the 20th century, this legal question became settled with regard to Homo sapiens, in that slavery became an international crime. But, did this settle all aspects of the question of legal personhood? What is the legal status of a Homo sapiens fetus? This question of personhood is the essential difference between "Of Two Planets" and "The War of the Worlds;" the Martians of the former work recognized Homo sapiens personhood; the Martians of the latter work did not.

Looking to the question of legal personhood for members of other species, one might posit that intelligence would be a factor, but how much intelligence is enough to qualify for personhood? Also, how intelligence is measured has always been a subject of controversy. It has been challenging to devise tests for our own species that are not culturally biased. How well would we be able to measure the intelligence of an extraterrestrial species? Scientists have gained some understanding of the intelligence of other mammalian species. Cetacean intelligence arose in the ocean, an environment very alien to us land-dwelling great apes, and their modes of cognition have been shaped by that alien environment. Yet, however intelligent they are, according to whatever measurements humans might devise, cetaceans are not legal persons. There is currently a project to gain some type of international legal personhood for the great ape species other than humans. I have read that a Canis lupus has roughly the same level of intelligence as a five-year-old Homo sapiens, yet the brutal killing of my friend and companion for his meat a couple of weeks ago is considered merely a property crime rather than a murder. What justice will Tongan law serve for Siaki Fainga'a? For that matter, given the radical differences among human cultures in their regard for terrestrial species, is it outrageous to question whether the outcome of humankind's first contact with an extraterrestrial species might depend on which culture makes that first contact, whether we might eat the aliens?

Another set of questions arises regarding extraterrestrial life that is of such a low order of complexity that there is no question of it being intelligent. What are the legal rights of Martian microbes or Europan lifeforms, if they exist? There is a body of scholarly inquiry into these questions, but there is no settled law.

Another question in international law is sovereignty. At the beginning of the Westphalian period (1648), territorial sovereignty was the central principle of international law. A state, that is to say a government of a territory, had the unquestioned right to do as it pleased within its own borders, free of interference from other states. I would be shocked if this non-interference principle were not carried over to the meta-law of intelligent species (I'll learn soon enough). Star Trek creator Gene Roddenberry has a sense of this when he invented the Prime Directive for the United Federation of Planets in 1966. But on Earth, the non-interference principle is "a custom more honored in the breach," as Hamlet quipped. The French intervention in the American Revolution on the side of the insurgents was illegal according to the international law of the time, although intervening on the side of the legitimate government, as a German prince did in renting out his army, was perfectly legal. It is my understanding that Tonga accepted "protectorate" status within the British Empire, but that it never lost its sovereignty entirely. A question in international law arises as to when Britain formally recognized Tongan sovereignty in a treaty, and whether the Tongan sovereign so recognized at the time exercised political control over a substantial portion of the territory that was recognized as being Tongan; presumably it had the capacity to enter into international agreements. (This question of international legality is of course irrespective of the misery that British intervention in Tongan affairs may have caused. Even assuming that British intentions were benevolent, the road to Hell is paved with good intentions.) In our young century, one has ones choice of death knells of the Westphalian system, from the invasion of Iraq, which did not have the sanction of the United Nations, to the intervention in Libya, which did, to the American policy of overflying sovereign territory with armed unmanned aerial vehicles. Given that the concept of territorial sovereignty is on the wane on Earth, and that it is entirely absent from present international space law, one presumes that the alternative is to vest sovereignty in natural persons and/or in future human, non-territorial states elsewhere in the Solar System. In the absence of territorial sovereignty as a countervailing norm, one wonders what restraint there will be to humanitarian intervention, and indeed, what humanitarian intervention may come to mean with respect to nonhuman sovereignties in other star systems. Some of the most compelling Star Trek episodes addressed ethical dilemmas with regard to the Prime Directive.

In conclusion, I come back to "The War of the Worlds" and "Of Two Planets." In part, Wells meant his tale as a reversal of the British role in the genocide of the Tasmanians, with the Martians visiting genocide on Britain itself. Lasswitz's story is more complex in its political themes. The Martians are humanoid and are more advanced ethically as well as technologically. Initially, they establish a research station at the north pole in order to study Earth without interfering with terrestrial civilization. Their plans begin to unravel when a balloon expedition to the north pole discovers the Martian station. The Martians then have no choice but to openly declare their presence on Earth. They establish diplomatic relations with the various terrestrial governments, and they introduce Martian technologies that cure diseases and produce food from inorganic matter (this was written by a 19th century German… better living through chemistry). Despite the Martians' altruism, Earthmen begin to resent their superiority. In particular, the British provoke a war that it quickly loses, and in response the Martians establish a "protectorate" over Earth to stabilize the political situation. The more violently Earthmen resist Martian paternalism, including engaging in terrorism, the more oppressive Martian rule becomes, despite benevolent intentions.

26 April 2013

MAHINA: Once again many thanks for the elaboration and clarification. Not only is your argument interesting, it is also quite convincing. On the surface of it, I would go along with your reasoning for a logical name change from the specificity surrounding the "Moon Agreement" to the generality governing a "Solar System Treaty," so as to reflect the current state of the art relating to the exploration of "all the celestial bodies within the solar system" and "not just the Moon" [which as you rightly said represents the past and, in part, the future].

If the spacefaring plans for human missions to outer space are basically for "profitable exploitation" of celetial bodies, how, then, would that level of "profitability" be defined in view of Eartly States fiercely competing for the control of alien and material resources, realised through outer-space laws and treaties as means of averaging-out of the opposite inter-celestial-body alien interests?

Like the Moon versus the rest of the celestial bodies in the solar system, how would such laws and treatries be extended to the other solar systems outside of ours, given the fluidity or volatility governing the boundaries within and across the whole of the Universe? How would it be historically like or unlike the patterns of human activities on the so-called Global Village, Spaceship, Earth? Would it follow more or less similar historical paths on Earth, where technology, politics and economics are pushed through religion, education and, ultimately by force, through military dictation?

Just a thought!

GANGALE: As to the profitability of commercial space ventures, I take it all in with a huge lump of salt. There are a lot of snake oil merchants in the “high frontier,” and they have been around at least since the 1970s, hyping grandiose visions for private enterprise. I see this as largely a psycho-social response to the end of the technocratic race to the Moon between the Soviet Union and the United States; the former lost, and the latter won and went back home to Earth. This was a betrayal of the vision we read about as schoolchildren in the 1960s, and in response, there arose the belief system, “If the government won’t do it, private enterprise will.” Well, it didn’t. Forty years later, the same old schemes such as huge commercial solar collectors beaming microwave energy to Earth, have progressed... from vu-graphs to PowerPoint. Another betrayed dream, and so, another scapegoat. A favorite pastime is blaming space treaties for erecting legal barriers that have prevented these grandiose commercial schemes from coming to fruition. It’s a pathology that is deeply seated in broken childhood dreams, and cults have emerged to exploit this pathology. It’s more than simply sad, because these people actively poison the political climate for government space projects, thereby contributing to slowing the progress of space exploration. Dogma is the devil’s tool, doing more harm than good.

As you will see later this year in my article, “Ta-Va Palangi,” for the launch of our journal, one of my research projects has been the development of the concept of two-dimensional time as an analytical tool for both historical research and operations research. Inter alia, I have used it to track the progress of some of the most talked about commercial human spaceflight ventures. On Richard Branson’s own website in September 2004, he predicted that SpaceShipTwo would have its first operational suborbital flight in 2007. It still hasn’t happened. The private venture that has best kept to its schedule is Elon Musk’s Dragon. In December 2007, his website predicted the first flight to the ISS in November 2009. It was flown in May 2012; thus the schedule timespan more than doubled, from two years to four and a half years, not a thing to brag about. Maybe they spend less money than government programs do, but I don’t see that they are any better at getting the job done on time. Yet they continue to over-promise and under-deliver to the adulation of the delusional.

So, blame the government because you don’t understand the public policy process, blame the space treaties because you don’t understand international law, turn a blind eye to undistinguished track records of your entrepreneurial heroes because you don’t understand project management... and under no circumstances learn anything about economics:

“Experts advocate that mining rare and precious metals in our solar system would be so lucrative that it could solve all economic problems on Earth many times over. For example, in his book Mining the Sky: Untold Riches From The Asteroids, Comets, And Planets (1997), John S. Lewis, a professor of Planetary Science at the University of Arizona’s Lunar and Planetary Laboratory, stressed that mining near- Earth asteroids (and other parts of the solar system) could permanently support quadrillions of people under very ideal conditions. To give an idea of his figures, he estimates that if all platinum wealth in the Asteroid Belt were divided amongst everyone in the world, each person’s share would be $30 billion. He calculated that if all the wealth of all metals in the Asteroid Belt were equally divided amongst everyone, each person’s share would be $100 billion.”

The above paragraph is an excerpt from Page 2 of a book of which I just received a complimentary copy. There’s no elementary economic analysis of the enormous upfront investment (nonrecurring costs), recurring costs, marginal this and that, or the “scissors graph” that is the economic law of any raw materials production (the more you mine, the less it’s worth). If everyone on Earth owned a ton of platinum, the first thing that I would do with mine would be to drag it to the street for the rubbish man to haul away, or perhaps I would attempt to sell it off with the objective of cornering the more lucrative lead market.

In my view, the realistic role of entrepreneurship in space in the short term is in symbiosis with public policy objectives. When the government builds a road, partially justified to the taxpayer as being in the interest of national security, private parties build petrol stations, restaurants, hotels, and gift shops along the way. The airline industry got its start because the government wanted fast mail delivery; the private passenger and cargo markets came later. Looking further into the future, the main benefit from exploiting extraterrestrial resources will be to supply other enterprises in space, with repatriation of profits to Earth as will satisfy a reasonable return on investment. In other words, a few thousand investors on Earth may realize some millions of dollars each, but that is a drop in the ocean of the global economy. It will be the profits that don’t get repatriated to Earth that will make the big difference. Reinvestment in space will fuel the growth of the deep space economy. There will be lots of multi-millionaires in outer space, so many that they will be middle class (also due to the high cost of living, a matter of purchasing power parity), but the larger point is that humankind will have colonized a new ecological niche.

From its beginning, international space law has been fashioned to prevent immoderate claims to the celestial bodies and the sort of fierce competition -- economic, political, military, et cetera -- between nation-states that you mention. John F. Kennedy expressed it well in his 1962 speech at Rice University:

"We set sail on this new sea because there is new knowledge to be gained, and new rights to be won, and they must be won and used for the progress of all people. For space science, like nuclear science and all technology, has no conscience of its own…. I do not say the we should or will go unprotected against the hostile misuse of space any more than we go unprotected against the hostile use of land or sea, but I do say that space can be explored and mastered without feeding the fires of war, without repeating the mistakes that man has made in extending his writ around this globe of ours. There is no strife, no prejudice, no national conflict in outer space as yet. Its hazards are hostile to us all. Its conquest deserves the best of all mankind…."

To me, his words are the vision statement for international space law, which was nascent at that time. There will be competing interests in space, just as there are on Earth, and just as on Earth there is law to mediate these, so must there be law wherever humankind ventures.

Which segues easily to your question regarding law extending to other star systems. In an essay that I need to get around to publishing, I state:

"While humankind’s means of navigating outer space remains restricted to various forms of kinetic reaction (i.e. “rocket” or “impulse”) propulsion, whether chemical, or in the future, nuclear thermal, nuclear ion, or even fusion or matter-antimatter, it is most likely constrained to the Solar System. Faster-than-light propulsion that would take us to other star systems is only a dream in our time. That the Moon is within the reach of humankind is beyond question: we have been there. Arguably, with the landing of Apollo 11 on the Moon, Mars came “within reach,” for the National Aeronautics and Space Administration and its contractors had already been studying human expeditions to Mars for years (Boeing 1968); by 1969, those plans had reached sufficient maturity to be proposed to national leaders as humankind’s next step in the exploration of outer space, to be achieved in the early 1980s. That this step remains untaken has to do with domestic political priorities; the argument that international law is to blame for the retreat from the Moon following the Apollo program is so obviously flawed on so many levels that it invites charges of dishonesty (Gangale 2009, 160-166). Although the prospect of landing humans on Mars remains more remote than I would like, I still expect, perhaps optimistically, that it will occur about the middle of this century. The enabling technologies for Mars expeditions would be applicable to other inner Solar System destinations: near-Earth asteroids, Venus (although not to its surface), and Mercury. Human expeditions to the outer planets in our Solar System probably belong to the 22nd century. While all of the technologies required for such expeditions may not be in hand, the necessary principles of propulsion exist, and from that perspective these celestial bodies can be said to be “within reach.” Thus, I think it would be permissible to consider the celestial bodies of the Solar System as the province of humankind. One conceivable caveat to this would be the discovery of life on another celestial body in our Solar System; here we venture into a bioethical debate, which, although a worthy debate, is beyond the scope of this work. The approximately one thousand planets in other star systems that have been discovered (Paris Observatory 2012) are clearly beyond the reach of humankind and are likely to remain so for several centuries at least; therefore the only logical conclusion is that they are res nullius. It is hardly necessary for the Outer Space Treaty to declare this explicitly…. [I]t is not the province of law to define every boundary of what is humanly possible, for those boundaries are subject to change; however, what is beyond the reach of humankind is obviously beyond the law of humankind in the context of things that may be appropriated."

Regarding the future of politics and economics in the Solar System, this is where I chose to conclude my dissertation and restrict it to questions of law. However, Marilyn Dudley-Flores and I have done work together in this area (see "Forecasting the Political Economy of the Inner Solar System," Astropolitics, December 2012). Although the work I have done on my own is currently on my dissertation’s cutting room floor, I plan to cycle it to a future writing project. In composing a short answer to your question, I will address three factors. First, throughout the past century, the basis of sovereignty has been shifting from the territorial state to the individual, progressing from national self-determination in Woodrow Wilson’s Fourteen Points to the 1945 Nuremberg Principles to the 1948 Declaration of Human Rights and the body of postwar human rights conventions. International space law has developed in this climate of declining territorial sovereignty, so it is comes as little surprise that territorial sovereignty is a concept that is absent in international space law. Secondly, environment shapes culture, and the obvious differences between maritime cultures and continental cultures are as nothing compared to how the space environment will shape culture. Third, technology also shapes culture, and what technology the future will bring is anyone’s guess. In sum, the development of outer space will be historically unlike the patterns of human activities on Earth. We will not “the mistakes that man has made in extending his writ around this globe of ours.” We will make entirely new ones. That is progress, for it is in that process that the “new knowledge to be gained and new rights to be won” will be manifested.

25 April 2013

MAHINA: Many thanks for sharing the excitement. Great stuff. However, the critique you and the others are making of some aspects of the proposed space treaties and proposed protocols sounds interesting. Given that from a practical angle it is just as difficult to amend the said Treaty as it is to agree on a new one, is your choice to write a new treaty merely a matter of reflection that is confined to the investigation of your subject matter in the production of your doctoral project?

GANGALE: There are several reasons to prefer a new treaty over amending an old one.

First of all, although I have not made a study of so-called failed treaties and whether subsequent amendments or protocols led to greater acceptance or "rescue" of them, I rather suspect that such instances are the exceptions rather than the rule, and that the norm is for a new treaty to replace a previous one outright. Examples would be the 1944 Convention on International Civil Aviation, and the 1982 Convention on the Law of the Sea. A notable exception is the 1994 Agreement on Part XI of the Convention on the Law of the Sea, which gutted the convention's provisions for an International Seabed Authority and an associated Enterprise. With the exception of the US, all major industrial states, i.e., states with the potential to exploit the seabed, have since ratified the Convention.

Another reason is that I find the text of the Moon Agreement to be organized strangely. In my view, certain paragraphs appearing in different articles would be organized more logically into an article of their own. Other articles need to be rewritten, a couple deserve to be discarded in their entirely, and an article containing a definition of terms ought to be added. Ultimately, one arrives at the point at which the revisions are so extensive that one is left with a substantially new document. In contrast, the 1994 Part XI Agreement was focused on a specific part of the Law of the Sea Convention, which is a very long and detailed document that deals with many other issues.

Thirdly, no matter how the Moon Agreement may be amended, its very name is a 34-year-old object of odium among a very large and very well organized segment of the lay community of space enthusiasts. As a new, small, and obscure community in the late 1970s, it organized to defeat US ratification of the Moon Agreement, and that defeat led other spacefaring states to turn away from it. The defeat of the Moon Agreement has since become central to this community's creation myth. Thus an effort to ratify an amended Moon Agreement could be framed as a frontal assault on this belief system, which even if it were to succeed, would be unnecessarily bloody. This is not a hill for anyone on either side to die on. In this case, gaining acceptance of a new treaty may well be politically more feasible than gaining acceptance of an amended treaty.

Finally, there is the opportunity to choose a new name based on an updated perspective on the exploration and development of outer space. The Moon was the focus of the US and Soviet space programs in the 1960s and the early 1970s, and the wording of the Moon Agreement reflects the preoccupation of that earlier time. However, by the time the Moon Agreement was opened for signature in 1979, its focus on the Moon was already an anachronism. It should be noted that the term "Moon Agreement" is a misleading contraction of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Article 1, paragraph 1 states:

"The provisions of this Agreement relating to the Moon shall also apply to other celestial bodies within the solar system, other than the Earth, except insofar as specific legal norms enter into force with respect to any of these celestial bodies."

In reality, the agreement pertains to all "celestial bodies within the solar system," not just the Moon. Perhaps calling the agreement the "Solar System Agreement" would have sounded grandiose in the 1970s, when only the Moon, Venus, and Mars had been visited by spacecraft, but 40 years later all of the planets in the Solar System have been explored, as well as several asteroids and comets. Furthermore, the Moon is far from being the focus of plans for human missions to deep space and for profitable exploitation of celestial bodies. In this context, the Moon represents the past, and it is only part of the future. The name "Solar System Treaty" not only reflects a broader, 21st century perspective, it reflects the reality of the treaty's scope.

About Me

Thomas Gangale holds a bachelor's degree in aerospace engineering from the University of Southern California and a master's degree in international relations from San Francisco State University. He was both an airman and an officer in the US Air Force, serving as an air traffic controller and an F-4 weapon systems officer. Also while on active duty, he served on the technical management teams of several satellite projects of the highest national priority involving national technical means of verification of strategic arms control agreements, as well as a Strategic Defense Initiative satellite program and two Space Shuttle payloads (STS-4 and STS-39). He has published numerous articles in aerospace and social science journals, has presented papers at several aerospace symposia, has written opinion editorials in major metropolitan newspapers, and has appeared as a guest on radio talk shows. He is a leading authority on timekeeping systems for other planets, and is the inventor of a class of orbits that will be essential to communication between Earth and crews in the vicinity of Mars. He is the author of the American Plan for reforming the presidential nomination process.